CCMA Case Study: Substantive Fairness in Alcohol-Related Dismissal

Case Number: NWRB1190-24

Forum: CCMA Arbitration

Outcome: Dismissal Upheld (Substantively Fair)

The Challenge

The applicant, an Acting Foreman in the mining sector, was dismissed for reporting to work under the influence of alcohol. The applicant challenged the substantive fairness of the dismissal, specifically disputing whether the rule was contravened and if the sanction of dismissal was appropriate. The applicant’s primary defense was that he had requested a voluntary test, which under company policy would typically result in being sent home for absenteeism rather than facing dismissal.

Our Strategy

The defense of the dismissal focused on proving that the alcohol test was not voluntary but occurred during standard entry procedures. Key evidence presented included:

• Video Footage: Evidence showed the applicant failed the initial breathalyzer at the site entrance and did not go to the designated voluntary testing booth in the guard room.
• Testimony: Security personnel and supervisors testified that the applicant only attempted to sign the voluntary register after testing positive multiple times during a normal screening.
• Policy Compliance: It was argued that although a later breathalyzer test showed a 0.00% reading, this occurred an hour later and did not override the initial positive results recorded at the time of entry.
   

The Outcome

The Commissioner found that the applicant’s version was improbable and that he had provided a false account to cover the fact that he tested positive during normal entry procedures.

The dismissal was ruled substantively fair based on several factors:

• Rule Contravention: The applicant admitted to “blowing red” (testing positive) on three occasions.
• Nature of the Environment: Reporting for duty under the influence is a serious offense, particularly within the high-risk mining environment.
• Position of Trust: As a supervisor, the applicant was expected to set an example for subordinates.
   

Key Takeaway

Voluntary disclosure policies for substance use are intended for proactive safety, not as a shield to be used after an employee has already been caught by standard screening procedures. In high-risk industries like mining, the CCMA maintains a strict standard regarding alcohol consumption and workplace safety.